Good v. Loan Co. , 16 N.M. 461 ( 1911 )

OPINION OF THE COURT. This is an action brought by the appellee, hereinafter styled the plaintiff, against the appellants, hereinafter styled the defendants, to foreclose a mortgage on real estate. Judgment for the plaintiff, and defendants appeal.

The appellants assign four errors for our consideration. Of these the first and second are not before us, having been waived.

1. The third assignment of error questions the action of the court below in stricking out the eighth, ninth, tenth, and twelfth paragraphs of defendants' answer. By the eighth paragraph of the answer, it is alleged that the plaintiff had no legal right to sue, for the reason that on the face of the complaint it appeared that plaintiff is a foreign corporation and that it did not appear from said complaint that plaintiff, previous to the execution of the contract sued on, had complied with the laws and statutes of New Mexico governing foreign corporations. Our statute on this subject (section 102, c. 79, Laws of 1905) provides that: "Every foreign corporation except banking, insurance and railroad corporations, before transacting any business in this territory shall file in the office of the Secretary of the Territory a copy of its charter," etc. The phrase "transacting business" has been held to be equivalent to the words "doing business" found in the statutes of many of the states. General Conference of Free Baptists v. Berkey, 105 P. 411; 156 Calif. 466. The case of Cooper Manufacturing Company v. Fergusson, 113 U.S. 727, disposes of this point in favor of the plaintiff, holding, in effect, that the doing of a single act of business, or performing one transaction, would not be within a statute such as ours. It is on this case we hold that, as far as the record before us shows, the plaintiff had transacted but this one act of business, and therefore paragraph eight of the defendants' answer did not constitute a good defense and was properly stricken.

2. By the ninth and tenth paragraphs of defendants' answer, it was alleged that the rate of interest charged and provided for by the mortgage exceeded twelve per centum per annum and therefore was contrary to Section 2552, Laws of 1987, which provides that: "In written contracts for the payment of money it shall not be legal to recover more than twelve per cent. interest per annum." By the terms of the mortgage and contract between the parties, it was stipulated that the law of the contract should be

the statutes of the State of Colorado. This being so, the laws of the Territory of New Mexico are not applicable to this contract, and the court below was correct in striking the paragraphs of the answer. Steinman v. Midland Saving Loan Co. et al., 96 P. 860; U.S. Savings and Loan Co. v. Shain et al., N.D., 77 N.W. 1006.

3. By the twelfth paragraph of defendants' answer, they allege that they have been compelled to employ an attorney to defend the action and that a reasonable fee for such attorney is two hundred and fifty dollars. This paragraph, also, was properly stricken. Dame v. Cochiti Rd. Imp. Co.,13 N.M. 10; 79 N.M. 10; 79 P. 296, in which it was held that: "In the absence of any allegation and proof of an agreement to pay counsel fees, such fees cannot, unless especially provided for by statute, be awarded as costs or otherwise."

4. By their fourth assignment of error, the defendants say that the court erred in giving judgment for plaintiff in the sum of $819.60. There appears from the record to have been no exception taken to the judgment, or to the findings of fact or conclusions of law of the referee appointed herein, upon which judgment was found. As there appears to be nothing in the record which shows that the judgment is fatally defective on account of a lack of jurisdiction, we will not consider the assignment of error in this case. We have held, in the cases of Neher v. Armijo,11 N.M. 67, 66 P. 517, and De Baca v. Wilcox, 11 N.M. 352,68 P. 922, that "We will not examine a record, unless exceptions have been taken and the errors complained of called to the attention of the trial court. This is the general rule, subject to the exception that this court will notice, without exception or presentation, jurisdictional and other matters which may render a case inherently and fatally defective and require a reversal." For the foregoing reasons, the judgment of the lower court is affirmed.